Julie Whiting v Broadspectrum (Australia) Pty Ltd

[2019] FWC 3336

[2019] FWC 3336

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Julie Whiting
v
Broadspectrum (Australia) Pty Ltd
(U2019/2998)

VICE PRESIDENT CATANZARITI SYDNEY, 14 MAY 2019

Application for an unfair dismissal remedy.

[1] Ms Julie Whiting was employed by Broadspectrum (Australia) Pty Ltd (Broadspectrum) from 8 November 2015 until she was dismissed on 15 June 2018.

[2] On 18 March 2019, Ms Whiting made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The application was lodged 255 days outside the 21 day period prescribed by s.394(2) of the Act.

[3] On 3 April 2019, Broadspectrum filed an Employers Response (form F3) raising two jurisdictional objections on the basis that Ms Whiting’s application was made out of time and the dismissal was a case of genuine redundancy.

[4] Despite the objection Broadspectrum agreed to attend conciliation. The application was initially listed for telephone conciliation before a Fair Work Commission conciliator on 18 April 2019 at 1.45pm. Broadspectrum sought and was granted an adjournment of the conciliation and it was relisted for 10.45am on 18 April 2019. The conciliation took place but was not successful.

[5] The matter was referred to me to determine the out of time jurisdictional objection. Correspondence was sent to Ms Whiting on 23 April 2019 requiring her to provide a statement in support of the granting of an extension of time for the late lodgement of her application. She was asked to provide the information by no later than 4.00pm on 1 May 2019. No response was received from Ms Whiting.

[6] On 7 May 2019, further correspondence was sent to Ms Whiting directing her to provide a response by 4.00pm on 10 May 2019. She was advised that in the absence of a reply her application may be dismissed.

[7] To date, Ms Whiting has not responded to any of the Commission’s correspondence.

[8] Section 587 of the Act provides:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

(2) Despite paragraphs (1)(b) and (c), FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[9] The words, “Without limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act, establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

[10] In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

[11] An order to that effect will issue with this decision.

VICE PRESIDENT

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